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OUR FORM OF GOVERNMENT 



AND 



THE PROBLEMS OF THE FUTURE. 



BY A. E. KROEGER. 



\:iv. 



4 



1 5 -i' ^ — , 






OUR FORM OF GOVERNMENT 



AND 



THE PROBLEMS OF THE FUTURE 



BY A. E. KROEGER. 



To point out the fundamental principle 
of law and government signifies, to show 
that, self-consciousness is impossible un- 
less a certain relation is established be- 
tween a multiplicity of human individuals, 
which relatioji is called that of law, or 
the legal relation. 

It is the business of a Science of Rights 
to furnish the exhaustive proof of this 
proposition. To attempt it within so lim- 
ited a space as that of this treatise would 
be absurd, and hence we can at the utmost 
recapitulate the chief points of that proof. 

The Science of Knowledge in general 
establishes the proof thab the conception 
of self-consciousness involves the concep- 
tion of a free causality. The Science of 
Rights accepts this proof as a fact from 
the Science of Knowledge in general, and 
next proceeds to show that such free caus- 
ality involves the conception of a sensuoUiS 
world, through which it may become pos- 
sible at all, and of a multiplicity of indi- 
viduals, through whom it may become an 
object of consciousness. In showing that 
the consciousness of free activity, or self- 
determination, can arise only if one of 
a multiplicity of rational beings compre- 
hends an influence directed upon it to be 
that of a similar free activity in another 
rational being, the Science of Law or of 



Rights establishes the universal validity of 
its deductions. 

For this is then clear : A rational being 
would not be possible, except as placed in 
relation to another rational being, which 
relation compelled the former to compre- 
hend the latter as a free, self-determined 
being. It is only through thus compre- 
hending the other as free and self-deter- 
mined, that the former becomes conscious 
of its own freedom and rationality, or, in 
other words, that it becomes a free and 
rational being. It is only through this 
relation that rationality and self-determ- 
ination becomes possible. No legal rela- 
tion, no rational beings. 

Having thus shown up the universal va- 
lidity of its fundamental principle, the 
Science of Rights next proceeds to estab- 
lish the problem which that principle in- 
volves, and which is this : 

How can a multiplicity of free and self- 
determined individuals exist together ? If 
each rational being, in order to be such, 
must comprehend the others as equally 
free, how can it retain its own freedom? 

Our own Declaration of Independence 
expresses this absolute freedom or self-de- 
termination of each rational being, as fol- 
lows : 

"We hold these truths to be self-evi- 



Our Form of Government 



dent : that all men are created equal ; 
that they are endowed by their Creator 
with certain inalienable rights ; that 
amongst these are life, liberty, and the pur- 
suit of happiness." 

The word " amongst " might have been 
left out, for it is self-evident that only 
these three original or natural rights are 
possible : a right to life, because a rational 
being could not become conscious of caus- 
ality upon the sensuous world unless it 
posited itself as existing beyond the act 
of such causality in order to perceive its 
realization ; a right to freedom, because 
the conception of a rational being involves 
the conception of self-determination; and 
a right to the pursuit of happiness — which 
is used in the Declaration of Independence 
as equivalent to a right of property — be- 
cause every free being, in order to have 
causality upon the sensuous world, must 
make a part of that world subject to its 
purposes, or must make it its property. 

But if each rational being has these 
rights by virtue of its rationality, and if 
each must comprehend the other as enti- 
tled to them in order to become itself a 
rational being, how is rationality itself 
possible? Evidently there must be a con- 
ception, by virtue of which each rational 
being limits its own original rights by the 
conception of those of others. But how 
can such a conception be realized? Grant- 
ed, that each individual recognizes this 
conception as the only possible condition 
of rationality, how shall the one be sure 
that the other will always recognize it 
thus in his acts, or, in other words, will al- 
ways treat him as a rational being ? Clearly 
the mere conception must becpme an ex- 
ternal law, an agreement of each with all 
others to respect their self-determination. 
Without such an agreement they cannot 
securely live together, and since they must 
live together ; in order to be free beings, 
each one has the right to compel each other 
one to enter such an agreement with 
him. Whoever should refuse to enter it, 
would thereby declare himself to be not a 
rational being. It is, indeed, only after 
each has obtained the agreement of all 
others to respect his rights, that he has 
rights. These rights, as we have seen, are 



three in number : rights to life, liberty, 
and property — the latter word signifying 
free causality upon a limited sphere of the 
sensuous world. 



A right to life is generally understood 
to signify right to the body as a whole, 
the body being in the sensuous world the 
rational being itself. Bach individual 
must retain exclusive determination of his 
own body. No one has ever the right to 
compel a physical action not determined 
through the will. In other words, com- 
plete moral freedom is guaranteed to each 
individual in guaranteeing to him this 
right to life. To secure it he enters the 
agreement with all others, and he has no 
other purpose than to secure it in entering 
that agreement. If it is taken away from 
him — unless he commits a crime, and thus 
loses all his rights, and ceases to be a ra- 
tional being — the agreement is annulled. 
By commanding, for instance, forcible 
military duty (conscription), a government 
annuls itself, because it annuls the only 
reason for its establishment — to-wit, the 
self-determination of each individual. 

The right to life involves also the con- 
tinuance of that life — a right which is 
specified in law books as a right to lawful 
and uninterrupted enjoyment of life, of 
the body, of health, and of a good name. 
Even the right to employment is included, 
as when Blackstone says: "The law not 
only regards life and members, and protects 
every man in the enjoyment of them, but 
also furnishes him with everything neces- 
sary for their support. For there is no man 
so indigent or wretched but he tnay de- 
mand a supply sufficient for all the neces- 
sities of Hie. from the more opulent part of 
the community, by means of the several 
statutes for the relief of the poor." 

The right to freedom is usually held to 
signify freedom of bodily movement, a right 
esteemed even higher than that of life. 
Hence the great importance attached at all 
times to the habeas corpus act, until re- 
cently, that sacred respect for it has un- 
happily been lessened by its temporary 
repeal. It is folly to urge, that the " con- 
dition of the country" may justify such 



And the Problems of the Future. 



violations of the law. No individual be- 
comes a citizen of a State to have his 
rights guaranteed to him when there is no 
danger, but to have them secured when 
danger threatens. The habeas corpus act 
was not so much intended for times of 
peace, for no one would think of violating 
its principles in times of peace ; it was 
particularly intended for times of war, of 
rebellion, of great public danger; and all 
provisions in the Constitution, and in our 
statute books, are only intended for cases 
of violation of the law ; for law is created 
only to negate itself, to make itself super- 
fluous. Is it supposable that the people 
would make a law to bring before a court 
any one " who is detained with or loUhout 
due process of law, unless for treason or 
felony, plainly and specially expressed in 
the warrant," &c., if that law was intend- 
ed to be operative only in times when it 
was least likely to be needed? 

The right to freedom also involves the 
right to emigration, another right which 
was unlawfully taken away recently. This 
right signifies that each citizen^of a com- 
monwealth may at any time declare his 
retirement from the State by emigrating. 
The 'right is grounded upon the right of 
moral freedom. Changes may occur in 
the laws of a State, which render it im- 
possible for a man who respects his free- 
dom of conscience to remain. The only 
escape open to him is to leave the State, 
wherein he can no longer maintain his 
dignity as a man, and no power in the 
world has the right to enslave him, by 
compelling him to remain. 

Originally each man has the same right 
of property to all the sensuous world. By 
entering an agreement with others he lim- 
its his right to a certain part of the world, 
and having this part recognized by the 
others, recognizes in his turn their appro- 
priated part. If he does not appropriate 
any landed estates, he may appropriate a 
certain branch of business, or practice of 
a profession. His sphere of causality, no 
matter what that sphere is, is his property, 
as soon as it is recognized by his fellow- 
citizens. 

The recognition of these three rights is 
contained, for our whole Republic, in the 



Declaration of Independence, as we have 
shown, which is thus the Bill of Rights of 
our people. How clearly the true nature 
of the Declaration of Independence, as 
such an original Bill of Rights of our 
form of government, has been apprehended 
by others, let the following sentence from 
the oration of John Quincy Adams bear 
witness : 

''The Declaration of Independence was 
a social compact, by which the whole peo- 
ple covenanted with each citizen of the 
United Colonies, and each citizen with (he 
whole people, that the United Colonies 
were, and of right ought to be, free and 
independent States." Let us add: "And 
that all men are born equal, and are en- 
dowed by their Creator with certain un- 
alienable rights, which are life, liberty, 
and the pursuit of happiness." 



But an agreement of each with all, to 
respect each other's freedom, affords no 
security that the rights of each will be re- 
spected : on the contrary, it is based on 
the very supposition that each will not re- 
spect the rights of the other. Hence the 
necessity of a power to compel each per- 
son to respect that agreement ; and hence, 
also, the necessity of entrusting this power 
to a third party. For if each were to have 
the power of compelling redress of his own 
grievances, the insecurity would be just as 
great as if no agreement at all had been 
made. 

The Declaration of Independence gives 
expression to this in the following clause : 
" That to secure these rights governments 
are instituted amongst men, deriving their 
just powers from the consent of the gov- 
erned ; that whenever any form of govern- 
ment becomes destructive of these ends, it 
is the right of the people to alter or abol- 
ish it, and to institute a new govern- 
ment." 

This statement is as wonderfully com- 
prehensive as that respecting the original 
rights of men, and indeed in these two 
statements of the Declaration of Indepen- 
dence is contained the whole Science of 
Rights. This statement involves the fol- 
lowing two : 



«1 



Our Form of Government 



1. A government must be established, in 
order to secure the rights of men. 

2. The government must be held respon- 
sible to the people. 

In other words: The people cannot re- 
tain the power of deciding their own law 
cases ; that power must be transferred to 
a third party ; but at the same time the 
people must retain the power to prevent 
that third party from ever deciding against 
the law. The people must establish a gov- 
ernment, and at the same time establish 
checks to prevent that government from 
transcending its powers. 

In showing up the necessity of these two 
conditions for the realization of the con- 
ception of rights, the Science of Rights 
furnishes the a priori justification of the 
American form of government, as one of 
limited powers, and of checks and balances. 

Ancient democracy did not recognize 
this principle of limited powers. In Athens 
the people retained the power of judging 
their own cases in their own hands, and 
hence that democracy was only despotism. 
Any form of government is despotic which 
places the executive power beyond the 
reach of responsibility. A sovereign 
President is a despot ; and a sovereign 
Congress is a despot. Despotism ceases 
only where sovereignty ceases. Even the 
people cannot be sovereign, for they can- 
not be held responsible. Athenian democ- 
racy was therefore thoroughly despotic, 
there being no appeal from decisions of 
the people, who were both judge and inter- 
ested party in every trial. To be rational, 
a f oi'm of government must return into it- 
self, and this is only done in a government 
which prescribes itself the law, not to vio- 
late the law. 

How both the executive power of a gov- 
ernment and the check upon that power is 
to be actualized in a commonwealth, is a 
question for the statesman to settle; a 
priori arguments do not extend so far. 
It is an infinite problem, which can be 
realized always more and more perfectly, 
yet never fully. The art of inventing a 
machinery, which will best accomplish its 
realization — of inventing a contrivance, hy 
means of which governments shall always 
have unlimited power to carry out the law. 



and yet shall at the same time be utterly 
impotent to transgress or neglect the law — 
this most difiicult of all arts is the art of 
politics. The Spartans invented the 
Ephores as such a supervising power ; 
other countries have established the divi- 
sion of power, &c. We, in our country, 
have, moreover, superadded to it a com- 
plicated State confederation. But before 
we examine the realization of this con- 
ception in our commonwealth more closely, 
let us take a short review of the history 
of that realization. 



The history of the first settlement on 
the North American continent is known to 
all. Colonies were founded, and civil 
governments instituted, bearing more or 
less the impress of liberal ideas, as these 
ideas had been developed in England, and 
also of the republican conceptions obtain- 
ed from the Netherlands. A very distinct 
character was imprinted upon the New 
England settlements. The Puritans, who 
settled them, did not so much desire to 
build up a republican form of government 
as a theocracy, a new kingdom of the 
Jews. Having that peculiar conviction of 
the universal validity of their individual 
views, which we have before characterized, 
they, of course, considered it their saint- 
ly duty to persecute all who did not think 
like them. They drove away the noble 
Roger Williams when he preached perfect 
freedom of conscience. Freedom was not 
what the Puritans wanted, but authority- 
worship. Hence they also persecuted the 
Quakers. 

Opposed to this Puritan character, there 
became developed in the more Southern 
colonies a more tolerant, cheerful, reck- 
less character. In some colonies — as, for 
instance, in North Carolina — this charac- 
ter developed itself in its extremes, and 
thus degenerated into utter lawlessness. 
In no other colony was the law adminis- 
tered so loosely as in North Carolina. 
The rule was to let every one do as he 
pleased ; whereas amongst the Puritans 
the rule was that every one should be al- 
lowed to do only what was prescribed. 

Separated, as these colonies were origi- 



I— 



And the Problems of the Future. 



nally, into townships, counties, &c., these 
smaller parts soon formed themselves intq 
a whole, as one colony, connected by more 
or less strong ties. Codes of law were not 
established, but the English common and 
statute law was provisionally adopted so 
far as it was found to be appropriate. 
Where it did not suffice, the colonists 
made new laws — at firsi in personal gath- 
erings, and afterwards through their legis- 
latures. Rational connection in their 
legislation was thus out of the question. 
As characteristics of their modes of form- 
ing commonwealths, let ua remark that 
the new Plymoath colonists conferred 
each upon the other the necessary power 
of government before landing. In Massa- 
chusetts, the legislature consisted at first 
of the Governor, his assistant, and each 
citizen. In the year 1634, when the num- 
ber of citizens had become too large for 
such gatherings, the first delegate assem- 
bly was elected. In the year 1636 voting 
by ballot was introduced. In Connecti- 
cut an ordinance provided that if the As- 
sembly of Representatives should not be 
called together at the proper time, the 
free citizens should have the right to as- 
semble themselves in Convention. 

These different colonies at first had little 
communication with each other. Geo- 
graphical position, as well as provincial 
peculiarities, kept them apart : and it was 
only gradually that the conception of a 
union arose amongst them. This union- 
idea at first found its chief support in the 
religious element, and hence was preemi- 
nently expressed in New England. As 
early as 1643 the " United Colonies of New 
England^' formed themselves into a politi- 
cal whole. Their act of confederation left 
to each colony complete authority within its 
own limits. But a Congress, consisting of 
two commissioners from each colony, had 
the power to declare war, to conclude 
peace, and to consult about matters of 
common interest. Each colony was obliged 
to furnish an equal number of soldiers 
and an equal amount of money for every 
war. 

This first confederation of some of the 
colonies lasted only about forty years ; 
but Indian hostilities, and England's wars 



with foreign powers, frequently compelled 
all the colonies to unite for provisional 
purposes. Commissioners were selected 
at such times to come together and con- 
sult about the measures esteemed most ad- 
vantngeous for all the colonies, and these 
gatherings did much to strengthen the 
dawning desire for a more complete union. 
At first England supported these union 
tendencies ; but as soon as they threaten- 
ed to result in an effectual union, England 
protested against them. This occurred in 
1754, when a Congress of the colonies — 
New Hampshire, Massachusetts, Rhode 
Island, Connecticut, New York, Pennsyl- 
vania, and Maryland — came together to 
draw up a plan for the union of all the 
colonies under a confederate form of gov- 
ernment. The most prominent men of the 
country were elected to this Congress. It 
was unanimously resolved that a union of 
the colonies was absolutely necessary for 
their preservation. A plan of government 
was also drawn up, containing some ad- 
mirable provisions. The colonial legisla- 
tures were to elect the members of a Con- 
gress, which Congress, together with a 
President, to be appointed by the King, 
should administer the government of the 
union. Congress w^as to have power to 
declare war, conclude peace, make laws 
for the new Territories, organize troops, 
levy taxes, &c. 

But all the colonies, except Massachu- 
setts, expressed indignation at this pro- 
posed form of government. Franklin, who 
was a member of the Congress, declared 
afterwards that it would have been abso- 
lutely impossible to form a union of the 
colonies against England without resorting 
to the most intolerable tyranny and com- 
pulsion. 

Perhaps, indeed, the people of the col- 
onies were actuated in this opposition to 
union by a very correct instinct. A union, 
concluded when they were all weak bodies, 
was likely to have proved dangerous to 
their freedom and independence. After 
attaining a certain amount of independent 
strength and internal power, a union was 
no longer so dangerous. What neither 
the danger threatened constantly from 
Indians and European powers could effect. 



6 



Our Form of Government 



was finally achieved througli England her- 
self. A stamp tax and a tea tax ripened 
the conception that no individual can be 
secure of his rights so long as he is a 
member of a limited commonvrealth, or, 
to speak strictly, that absolute security of 
individuals is possible only in a confeder- 
ate republic, which extends over the whole 
world and embraces all rational beings. 
In this, its universal application, this con- 
ception was probably comprehended by 
very few ; but in an indefinitely limited 
extent it surely was comprehended by all 
the advocates of a union, and this com- 
prehension united the several colonists 
into an American people. 

The reason why a limited commonwealth 
cannot afford security to individual rights 
is, that adjoining States may at any time 
attack these individuals, since no agree- 
ment to respect each other's rights has 
been made between the citizens of one 
and those of another State. Such a mu- 
tual agreement is only possible under a 
confederate form of government, and is 
complete only when all the States of the 
world have joined it. For as long as a 
single State remains outside of it, war is 
always possible, and hence no individual 
is perfectly secure. In a confederate re- 
public war is impossible; only insurrec- 
tions, or revolts, may arise, if the execu- 
tive power is not well enough organized. 

In the year 1774 the first Congress of 
the United Colonies assembled, therefore, 
in order to consider the common welfare. 
Prom this Congress emanated an address, 
asserting the fundamental principles 
upon which our republican government is 
based, and recommending, in order to 
secure these rights, that all commercial 
intercourse with England be stopped — a 
recommendation which, being generally 
observed, gave to the Congress an import- 
ance which enabled it to continue its ses- 
sions, until, on the 4th of July, 1776 — 
authorized by the people of the colonies — 
it emitted the immortal Declaration of In- 
dependence. 

This document is, therefore, the corner- 
stone of our form of government, for 
through its means was realized the condi- 
tion of that government — union of all the 



colonists into one commonwealth, and in- 
dependence from external powers. Very 
properly is it, therefore, made the special 
object of veneration on the part of the 
people— for the Declaration of Independ- 
ence contains the a priori, and hence eter- 
nal and unchangeable, principles of law, 
upon which alone a rational form of gov- 
ernment can be established. No power 
in earth or heaven can annul these rights 
or overthrow these principles. They are 
eternal as rea&on, because they alone make 
reason possible. The Constitution, on the 
contrary, is subject to change, and may be 
constantly improved upon. 

Thus arose and was realized the con- 
ception of our republic, as the universally 
valid form of government for all men, and 
based on the rights of all men. What 
constituted the newness of this conception 
was this : that for the first time in human 
histoi-y a commonwealth was established 
to secure individual rights, and that both 
sides of the problem of rights — the sanc- 
tity of individual freedom, and the neces- 
sity of a universal union of all individuals 
into one commonwealth — were equally up- 
held. Man was the basis of this com- 
monwealth — not a race, or a nationality, 
or a limited people. To secure the rights 
of man alone was this commonwealth es- 
tablished — not for its own sake, and not 
for the sake of national greatness or pros- 
perity. 

On the other hand, in thus existing only 
for the individual, and recognizing no 
other limitation, the union existed for all 
individuals, for the whole race of men. 
Individuality and universality were equally 
acknowledged in this new form of govern- 
ment. 

The war now assumed more serious pro- 
portions, and the Congress constituted 
itself a sort of provisional revolutionary 
government, as the transitional condition 
from colonial dependence to the independ- 
ence of an organized confederate republic. 
For a while the Congress ruled with almost 
absolute sway, extending to Washington, at 
one time, full dictatorial powers for sis 
months ; but as the war continued, and 
the enthusiasm cooled down, the Congress 
lost the respect of the people. The neces- 



And the Problems of ihe Future.. 



sity of a realization of the Declaration of 
Independence, and hence the establish- 
ment of a common government became 
more and more apparent. Each State was 
at liberty to obey its orders or not. Wash- 
ington did his best to suppress the growing 
dissolution and anarchy. Finally, the 
Congress agreed upon some Articles of 
Confederation, which were transmitted to 
the several colonies for their ratification. 
In spite of an earnest opposition, these 
Articles were soon ratified, and in 1781 
the first Congress under this new order of 
things came together. 

But these Articles did by no means real- 
ize the conception expressed in the De- 
claration of Independence. They estab- 
lished no republic, no commonwealth for 
all the colonies, but simply a " league of 
friendship." They did not create a legal 
relation between the citizens of the several 
States as individuals, but simply a politi- 
cal relation between those States as inde- 
pendent bodies. A political relation, how- 
ever, is simply dependent upon questions 
of expediency, and may be altered when- 
ever expediency seems to require altera- 
tion. It afiTords no security to individual 
rights. The reason is, that there exists 
nowhere an absolute power of compulsion 
in case of a violation of law. Any State 
may refuse to recognize, at some time, the 
authority of such confederation, and there 
exists no judicial power to punish. In a 
true confederate republic this judicial 
power exists, and hence a question of vio- 
lation of law cannot arise between one 
State, as State^ and the general govern- 
ment; but only between the general gov- 
ernment and the citizens of a State, as 
individuals ; and against individuals we 
do not employ war, but the power of the 
courts. 

The weakness of the Articles of Con- 
federation soon became apparent, but was 
forgotten amidst the rejoicings for the 
victories of the American armies, and did 
not exhibit itself clearly till after peace 
had been concluded, in 1783. Soon after 
that peace, Washington issued a circular 
letter to the Governors of the several 
States, which, like all the writings of this 
noble man, showed his great political wis- 



dom, and in which he earnestly pointed 
out the defects of the Confederation-Arti- 
cles, urging an immediate reorganization 
of the existing form of government as ab- 
solutely indispensable for the future safety 
of the American States. In few words he 
characterized the new Union which ought 
to be established, unless all the results of 
the late wars were to be jeopardized again. 
" We must have an indissoluble union," 
writes he. " Whatever measures have a 
tendency to dissolve the union, or con- 
tribute to violate or lessen the sovereign 
authority, ought to be considered as hostile 
to the liberty and independence of Amer- 
ica, and their authors treated accordingly." 
" For it is only in our united character, as 
an empire, that our independence is ac- 
knowledged. The treaties of the European 
Powers with the United States of America 
will have no validity on the dissolution of 
the Union." 

But the patriotic admonitions of Wash- 
ington were unheeded. The confederation 
daily became more impotent. So little did 
it command respect that a number of the 
States neglected to send representatives to 
the sessions of Congress, and that it often 
was difficult to bring together a quorum in 
Congress. In each State two parties vio- 
lently opposed each other — one party en- 
deavoring to let all violations of law go 
unpunished, and thus to institute a condi- 
tion of complete anarchy, whilst the other 
party endeavored to arrest this movement. 
In some of the Eastern States, Massachu- 
setts, New Hampshire, Connecticut, &c., 
this state of things culminated in public 
outbreaks. 

At last Washington, Hamilton, Madison, 
and their friends, succeeded in inducing 
the Confederate Congress (1787) to call 
upon all the States to send delegates to a 
new Constitutional Convention. 

After a violent and bitter election, this 
Convention assembled. Three parties were 
represented in it. The one party, led by 
Patrick Henry — although he was not in 
the Convention, having refused to partici- 
pate in it — opposing every proposition cal- 
culated to take away from the several 
States their so-called sovereignty and in- 
dependence — i. e. their absolute limited- 



Our Form of Government 



ness. The second party, led by young 
Hamilton, in favor of the strongest possi- 
ble form of a central government. The 
third party had its chief leader in that 
highly gifted and wisest of statesmen, 
James Madison, who, whilst acknowledg- 
ing the justice of both extreme views 
within certain limits, endeavored so to fix 
these limits as to realize the object of both 
extreme parties, by inventing a form of 
government which would secure both Pat- 
rick Henry's great idea — absolute freedom 
of the individual, or impossibility on the 
part of the government to transgress the 
Constitution — and Hamilton's leading pur- 
pose — a supreme power strong enough to 
punish every violation of law throughout 
the united commonwealth. 

The federalists — as were at first called 
all the friends of a union — desired to form 
thirteen different States into one common- 
wealth ; but this intention was not incom- 
patible with a desire to maintain the rights 
of the States. There were State Rights 
men among the federalists as zealous as 
Patrick Henry ; but the distinction was 
that whilst Patrick Henry's party wished 
to uphold the authority of each separate 
State, and repudiated with contempt the 
proposition to unite all the citizens of 
those States into one people, the State 
rights men of the federalist party advo- 
cated the maintenance of the States' rights 
as tneans to afford better security for the 
rights of the individual, or as a part of 
that check upon the general government 
which we have shown to be absolutely 
necessary in a rational form of govern- 
ment. To the federalist State Rights 
were a means; to the State Rights party 
they were an end. The federalist State 
Rights men intended to use the rights of 
the States as one of the means both to 
preserve the general republic and to se- 
cure individual freedom — nay, it might 
even be said that their desire to establish 
a strong general government was inspired 
by a desire the better to secure the exist- 
ence of the several States. For the sys- 
tem of government advocated by Patrick 
Henry and previously tried, had neither 
secured the independence of the States 
nor been an efficient guarantee of individ- 



ual freedom. Nor will such a system ever 
accomplish its purpose. Independent and 
sovereign States are the greatest danger 
to individual freedom.. They establish 
that very centralization and possibility of 
despotism within their limits which is 
wrongly apprehended to result from a 
confederate union. In a well organized 
confederate republic, each State is a check 
upon the power of the general govern- 
ment, and the general government is 
equally a check upon the several States. 

While Hamilton's party, therefore, op- 
posed the proposed Constitution because 
it did not establish a strong enough gov- 
ernment, Patrick Henry's party opposed it 
as inaugurating a despotism. The estab- 
lishment of the Presidency, particularly, 
was violently denounced, and its dangers 
pointed out. So bitter was the opposition 
on both sides that only 39 out of 65 
elected members to the Convention signed 
the Constitution when it had been finally 
agreed upon. Sixteen members refused to 
sign it, ten did not even attend the Con- 
vention to sign it. A bitter struggle had 
now to be fought before the people of the 
several States, to whom the Constitution 
was to be submitted for ratification. In 
Virginia and Massachusetts the contest 
was most embittered ; and it needed Mad- 
ison's genius to save the Constitution in 
Virginia against the powerful assaults of 
Patrick Henry ; for this Constitution — 
upon that all were agreed — destro3''ed 
State sovereignty and created one su- 
preme government. 

It was, indeed, a mighty deed, this 
adoption of the Constitution. For the 
first time in the history of mankind the 
second fundamental principle of the De- 
claration of Independence, that the people 
have a right to alter their form of govern- 
ment, was actualized, when the citizens of 
the several States, in peaceful assemblies, 
pronounced themselves dissatisfied with 
their previous form of government and 
created a new one. 

It is remarkable how little the Consti- 
tution satisfied even the best patriots at 
first. Only Washington and Madison, 
most clearly the latter, seem to have imme- 
diately comprehended the greatness of the 



-aMMIttiiiiiiiMtfi 



And the Prohhms of the Future. 



9 



work accomplished ; and even they were 
struck with surprise as, year after year, 
the artistic marvels of the machine devel- 
oped themselves before their eyes. Frank- 
lin was dissatisfied with the division of 
the Congress into House and Senate, and 
with the reeligibility of the President. 
Jefferson also compared the President, who 
would be reelected every four years, to a 
Polish king. 

Thus, even after the adoption of the 
Constitution, the fight was still kept up. 
True, Patrick Henry's party had died out, 
because its issue had been killed off, but 
the split now arose in the party of the 
federalists. The advocates of a stronger 
centralization, led by Hamilton, and who 
were now alone called federalists, opened 
a vigorous warfare upon the opponents of 
centralization, who rallied under Jefferson, 
and assumed the name of democratic re- 
publican party. This contest has con- 
tinued in various forms up to the present 
day, and can only be finally settled by 
showing to each extreme that in itself it 
contradicts itself, and can maintain its 
existence only by granting equal validity 
to the other. 

V. 

The sole end of State organization is, 
as we have seen, to secure to each indi- 
vidual his self-limited sphere of freedom. 
This security can be effective only if the 
limits of that freedom are strictly defined, 
and the punishments to be visited upon 
the violation of those limits strictly pre- 
scribed ; and if a power of government 
has been established which will assuredly 
punish every such violation, but is itself 
impotent to become guilty of violating it. 

This end of all State organization is 
thus expressed in the preamble to the 
Constitution : 

" We, the people of the United States, 
in order to form a more perfect Union, 
establish justice, insure domestic tran- 
quillity, provide for the common defence, 
pi'omote the general welfare, and secure 
the blessings of liberty to ourselves and 
our posterity," &c. 

Every State organization necessarily 
presupposes a previous condition of the 
people it unites, upon which it therefore 



bases itself to a more or less extent. The 
organization of our Union proceeded from 
the historical preexistence of thirteen in- 
dependent States, all having already more 
or less perfect constitutions, laws, and 
forms of government. The question arose : 
Should these States be utterly cancelled in 
the new form of government, or should their 
independence be in part recognized? In 
other words : Would it be more advisable to 
utterly suspend all previous organizations 
of the people amongst themselves in small 
communities, to declare null and void all 
previous contracts, guarantees, laws, &c., 
and establish an entirely new order of 
things ; or to recognize as valid these pre- 
vious law-relations, and, accepting them 
all as valid, to merely gather them all to- 
gether into a more comprehensive unity? 
The latter course was adopted. The exist- 
ing State, county, and township organiza- 
tions were accepted as the legitimate ex- 
pressions of the will of the people, as 
their original and direct contracts Avith 
each other to observe each the rights of 
the other. Such original and direct com- 
pacts will, indeed, always arise in the 
shape of small communities, and it is the 
impossibility of a scattered people to di- 
rectly recognize each the other's rights 
which is the ground of our American jeal- 
ousy of the right of local self-government. 
Nevertheless these small locall organiza- 
tions have also a germ of unsafety, which 
again is the ground of our American in- 
stinct of expanding or enlarging our re- 
public to the utmost extent. History, as 
well as experience, has shown that in 
small independent communities the indi- 
vidual is not safe against the majority. 
For who is to check the power of the ma- 
jority when unjustly persecuting the in- 
dividual ? The histories of the Greek 
Republic, and of Venice, illustrate clearly 
the danger of small State organizations, 
so far as individual security is concerned. 
Anarchy, party despotism, and bitter con- 
flicts of factions are the results — results 
which have led the opponents of republi- 
can freedom to declare that the people are 
incapable of governing themselves. That 
the minority has not sufiicient protection 
against the majority under a republican 



10 



Our Form of Government 



form of government, has been the constant 
objection ; and it is very true when ap- 
plied to petty democracies, but in the con- 
struction of our commonwealth it has hap- 
pily no application. 

Perfectly to secure the rights of indi- 
viduals it is, therefore, necessary to com- 
bine small State organizations into one 
large one, to unite in a synthesis both re- 
quirements of local self-government and 
an extensive empire ; and this synthesis is 
realized in the form of a confederate re- 
public. The framers of our constitution 
found the various local self-governments 
ready afc hand. They did not abolish them 
in the new form of government which they 
established, but, on the contrary, recog- 
nized their legal validity, and granted to 
them a new independent existence ; but 
at the same time they constituted them 
such independent parts of a whole, thus 
retaining, in the new form of government, 
the advantages of local self-government, 
while superadding to it the additional safe- 
guard of individual freedom which results 
from a large commonwealth. 

This additional safeguard is of a two- 
fold character, viz., first, it serves as a pro- 
tection against the attacks from other, ex- 
ternal States — in the case of our republic, 
for instance, against the attacks of the 
European powers and of the Indians ; and 
secondly, it serves as a protection against 
possible despotism in local governments. 
Let us illustrate the latter despotism, never 
sufficiently recognized by the so-called State 
Rights men, and yet a very important fac- 
tor in the true understanding of our form 
of government. 

Whenever a certain class of citizens, led 
by common passions or common interests, 
combine to establish laws which infringe 
upon the original rights of other citizens, 
anarchy or despotism must be the result — 
despotism if that party succeeds, and anar- 
chy if its success is forcibly resisted by an 
outraged minority. This common interest 
may be of a religious, financial, or any 
other possible character. Manufacturing 
interests, commercial interests, agricul- 
tural interests, or railroad interests, may 
thus establish themselves into power, de- 
prive the minority of its just rights, and 



thereby incite to rebellion. Now, in a 
small State it is always difficult, often im- 
possible, to balance these several interests 
through each other, because, from geo- 
graphical reasons, the one interest is 
usually supreme. The best contrivance 
to make impossible such a despotism of a 
party or of a particular interest is terri- 
torial extension, whereby one and the same 
commonwealth is made to embrace all pos- 
sible interests, views, and passions, which 
thus can each keep the other in due check. 
When one interest or party conspires to 
rule unjustly in one part of the common- 
wealth, an opposite interest or party in 
another part of the commonwealth wilt 
have the power of annulling such conspir- 
acy, by annulling the unjust measures the 
former may adopt. Supposing, for in- 
stance, that in one of our States apolitical 
party should abuse its power by establish- 
ing a State religion, thus infringing on 
the rights of conscience of the minority, 
that minority would have legal redress in 
appealing to the common government of 
all the States, wherein that one State 
could not well prevail against all other 
States. On the other hand, if the general 
government should abuse its power by es- 
tablishing a religion for the whole com- 
monwealth, each separate State would 
again have redress by an appeal to their 
common judge, the Supreme Court. 

The confederate republic may be, there- 
fore, well pronounced the only lawful and 
rational form of government. It is the 
only form of government which secures 
perfectly the freedom of each individual. 
It is also the only form of government 
which secures that freedom more perfectly 
by its territorial extension, and hence in 
the highest degree, by extending itself 
over the whole globe,* and which thus 
realizes the second requirement of a ra- 
tional form of government, that it shall 
embrace the whole human race in one 
commonwealth. 

A question has sprung up between the 
State Rights party and the opposite party 
as to whether the constitution which es- 

* It is, therefore, the simple, naked truth to 
say that a single individual cannot be perfectly 
free, until all individuals are free. 



And the Problems of the Future. 



11 



tablished our commonwealth left untouch- 
ed the independence of the original thir- 
teen States or abolished it. It did neither, 
or rather both. There can be no doubt 
that the act which created a new form of 
government utterly abolished all subordi- 
nate forms of government in so far as they 
had previously an altogether independent 
existence ; but the same act reinvested 
those States with all the powers not ex- 
pressly delegated in the constitution to the 
general government. 

The distinction is very important. Our 
form of government is not a confederation 
of separate States, but is the original form- 
ation of a new government by all the in- 
dividual citizens of the old thirteen States. 
All laws under the constitution are made 
for individuals, not for States ; and hence 
the democratic party is very correct in 
saying that only individuals can be rebels ; 
while the party which holds that States 
can revolt thereby pronounces itself a rad- 
ical State Rights party. It is true that 
the Constitution was adopted in each 
State as such; but each State in adopting 
it, did it as a part of " we, the people of 
the United States," hence as individuals, 
and did not delegate " powers," but rather 
by that adoption helped to create a new 
form of government, cancelling thereby 
its own previous separate and independent 
form of government utterly. 

Hence although the independence of the 
States may now be as great, and their 
rights as many, as before the Constitution, 
the difference is this : previous to the Con- 
stitution the States had these rights and 
that independence of themselves, whereas 
after that adoption they hold them under the 
Constitution. Their previous form of 
government they derived from themselves ; 
their form, after the adoption of the Con- 
stitution, they derived from that Consti- 
tution. In other words, it is one-sided to 
say that the general government is one of 
delegated powers. For the separate State 
governments are also of delegated powers. 
The Constitution expressly confers upon 
them, in so many words, all their previous 
powers. We have no absolute government 
at all in any one place, because we have it 
everywhere ; our government is an in-it- 



self-returning form of government — the 
highest of all forms. As Madison truly 
expresses it, the Federal and State gov- 
ernments are in fact only agents and 
trustees of the people, invested with dif- 
ferent powers and established for different 
purposes. 

VI. 

Let us see, now, what specific powers 
the people delegated to the general gov- 
ernment, and what sphere of independence 
they delegated to the several States. The 
powers delegated to the general govern- 
ment are delegated in three different man- 
ners ; some are exclusively granted ; others 
are granted to the general government and 
at the same time prohibited to the States ; 
still others are delegated to the general 
government, but not prohibited to the 
States. In regard to the latter class of 
powers, the question often arises whether 
States can also exercise them, or whether 
they belong' to the general government ex- 
clusively. 

1. The Congress has exclusive jurisdic- 
tion over the seat of government, exclu- 
sive right to erect forts, arsenals, &c. 

2. " The Congress has power to levy and 
collect taxes, duties, imposts and excises," 
and "no State shall, without the consent 
of Congress, levy any imposts or duties 
on imports and exports, except what, may 
be absolutely necessary for executing its 
inspection laws," &c. Here the power to 
levy and collect taxes seems implicitly left 
to the States. 

3. Congress has power "to establish a 
uniform rule of naturalization, and uni- 
form laws on the subject of bankruptcies 
throughout the United States." Here, 
therefore, the question seems proper 
whether States may or may not also pass 
laws of naturalization, since they are not 
expressly prohibited to do so. 

The powers delegated to the general 
government are as follows : 

'' The Congress shall have power to de- 
clare war, grant letters of marque and re- 
prisal, and make rules concerning captures 
on land or water ; to borrow money on the 
credit of the United States ; to raise and 
support armies ; to provide and maintain 
a navy ; to make rules for the government 



12 



Our Form of Government 



and regulation of the land and naval 
forces ; to provide for calling forth the 
militia to execute the laws of the Union, 
suppress insurrections, and repel inva- 
sions ; and to provide for organizing, 
arming and disciplining the militia, and 
for governing such part of them as may Idc 
employed in the service of the United 
States, reserving to the States respectively 
the appointment of the officers and the au- 
thority of training the militia according 
to the discipline prescribed by Congress." 

The last clause is extremely vague. The 
question has arisen under it, whether the 
general government has the power to place 
the State militia under United States offi- 
cers? Connecticut and Massachusetts re- 
fused, in 1812, to furnish their quota of 
militia under such circumstances, the Gov- 
ernor of Massachusetts declaring it his 
prerogative to decide whether Congress 
was authorized to call out the militia or 
not, since the Constitution invested Con- 
gress with that power only for specified 
purposes, namely, " to execute the laws of 
the Union, suppress insurrections, and re- 
pel invasions." The courts confirmed the 
stand taken by Massachusetts, and decided 
that it was left with the separate States to 
decide when those conditions had arisen, 
since the Constitution had not invested 
Congress with the power to decide there- 
upon. In the year 1827, however, this de- 
cision was annulled by the United States 
Supreme Court, and the Pxesident declared 
to have solely the power to decide under 
what circumstances the calling forth of the 
militia might be justified.* 

But another important question in con- 
nection with the same subject has still re- 
mained undecided, namely : whether the 
militia is subject to federal or to State 
authority before being sworn into the ser- 
vice. If under State authority, then a re- 
fusal or neglect to enrol in the militia is a 
State offence : if under federal authority, 
then such refusal is a federal offence, pun- 
ishable under military law. The courts 
have decided that the State fixes the pun- 
ishment for such refusal or neglect. But 
if the State is the oflended party, then the 

* See Kent's Commentaries. 



federal government has no power of con- 
scription, such as was exercised in the last 
two years of the war. Again : if the 
State can fix the punishment, the question 
remains still open, can such punishment 
of a refusal to enrol bo otherwise than in 
the nature of taxation or fine ? 

As regards the first result, that the gen- 
eral government has no power of conscrip- 
tion, or no power to compel citizens to 
render military service, there is probably 
little doubt arjongst clear-minded men. 
It is sufficient to read the debates and 
polemical writings or the times when the 
Constitution was adopted to become con- 
vinced that the framers of that document 
never dreamed of granting such a power. 
Even Hamilton, the great advocate of a 
strong centralized government, repudiates 
the monstrous doctrine of general military 
duty. (See art. xxix. of the Federalist.) 
It is, indeed, not to be presumed that the 
men whose sole object in tearing them- 
selves from the rule of Great Britain was 
to secure individual freedom, should have 
established a government with power to ut- 
terly annihilate that freedom. A republic 
with the power of conscription is, indeed, 
no republic ; for in it no citizen is safe at 
any moment from having his whole liberty 
taken away, and himself put into slavery, 
since its Congress may declare war for any 
object it chooses, and immediately compel 
all citizens to do military duty under pen- 
alty of being shot as rebels. Who is to 
decide whether the Avar is such that citi- 
zens can conscientiously sacrifice their 
freedom and life to its object? Supposing 
Congress, in former times, should have 
declared war against Spain, in order to 
acquire Cuba as a slave State, would it 
have been disloyal to refuse to be shot for 
such an object? Were the Mexican wars 
of such a character as to constitute a refu- 
sal to be shot in their behalf rebellion ? 
When President Monroe, in 1814, after the 
war with England had lasted two years, 
gently suggested a national conscription, 
the whole country arose as one man " to 
protest against this more than Napoleonic 
tyranny ;" and nowhere was the opposition 
more bitter than in the New England 
States. 



And the. Problems of the Future. 



13 



Even if the Constitution did contain a 
provision granting the general government 
power of conscription, it vrould be unlaw- 
ful, for men have not the right to deed 
away their liberty. Such a provision 
would be as null and void as a grant of 
power to take away the life and property 
of every citizen at the pleasure of Con- 
gress. Or is not freedom as inalienable 
a right as life and propercy ? 

As regards the second result, most of 
the States have recognized the principle 
that a refusal to enrol in the militia can 
only be punished by a fine. The Consti- 
tution of Missouri, for instance, provides ; 
'' No person who is religiously scrupulous 
of bearing arms can be compelled to do 
so, but may be compelled to pay an equiv- 
alent for military service in such manner 
as may be prescribed by law." 

This does not exactly cover the case, but 
in practice it has always been found a suf- 
ficient protection. A rational provision 
would run in this wise : 

"No person can be compelled to take up 
arms, but may be compelled to pay an 
equivalent for military service, to be col- 
lected in the same manner as other taxes." 

" The Congress shall have power to de- 
fine and punish piracies and felonies com- 
mitted on the high seas, and oifences 
against the law of nations, and to regulate 
commerce with foreign nations." 

Also power ''to coin money, regulate 
the value thereof, and of foreign coin, and 
fix the standard of weights and measures ; 
to provide for the punishment of counter- 
feiting the securities and current coin of 
the United States ; to establish postofiices 
and post roads ; to regulate commerce 
among the several States, and with the 
Indian tribes ; to prescribe the man- 
ner in which the public acts, records 
and pjoceedings of the several States, and 
the effect thereof shall be proved ; to es- 
tablish a uniform rule of naturalization, 
and uniform laws on the subject of bank- 
ruptcies throughout the United States." 

The two last-mentioned powers have 
also been claimed by the several States, 
but clearly without authority. Congress 
could not establish uniform rules on the 
subjects of naturalization and bankrupt- 



cies, if the several States had also the 
power to legislate upon them. So far as 
the subject of naturalization is concerned, 
there arises, moreover, this consideration : 
Since the Constitution provides that the 
citizens of each State shall be entitled to 
all privileges and immunities of citizens 
in the several States, the exercise of the 
power of naturalization on the part of a 
single State would involve the assumption 
on its part to legislate for all the other 
States. 

" The Congress shall also have power 
to promote the progress of science and 
useful arts, by securing, for limited times, 
to authors and inventors the exclusive 
right to their respective writings and dis- 
coveries." 

The preamble of this clause is both very 
beautiful and very improper — beautiful 
in so far as the promotion of science and 
arts is highly meritorious, and improper 
in so far as it is not the object of law or 
government to promote science and arts. 
The object of government is purely to ad- 
minister law, and the promotion of sciences 
and arts is a matter which the individual 
citizens have to take into hand. In the 
same respect, the conclusion of this clause 
is also both improper and ridiculously in- 
adequate. It is inadequate if the object 
of the clause were really to promote 
science and arts ; for there are certainly 
many better means of promoting them 
than by giving to every wretched novel 
writer the copyright of his injurious pro- 
ductions. It is improper because it was 
superflous to grant such a right as a con- 
stitutional privilege, since it is the simple 
duty of the government to protect authors 
and inventors in theiv property. It needed 
no constitutional provision to secure to 
authors and inventors their right to what 
they could prove to be their own prop- 
erty. 

In this connection we may as well men- 
tion that the conception of an interna- 
tional copyright involves the most marvel- 
lous nonsense ever uttered in law matters. 
An author has the copyright of his work 
simply because the form in which he has 
put what he intended to say is altogether 
his individual property, precisely as every 



I DiiiiiiiiiiiiiiiiiUli 



am 



14 



Our Form of Government 



other citizen acquires property only by 
imprinting his own form upon external 
objects. But property is held only in a 
commonwealth ; and each citizen has a 
right of property only in so far as all 
other citizens of that commonwealth have 
agreed to respect his property. Outside of 
the commonwealth he cannot assert his 
right of property, because the outside 
citizens have not recognized it^ and he has 
never calculated upon their recognition. 
In consideration, for instance, of Mr. E.'s 
respecting the rights of every other citi- 
zen of the United States, all those citizens 
are bound to respect his life, liberty, and 
property. But this agreement has not 
been entered into by him with citizens of 
other States. Outside of his common- 
wealth he has no rights at all, and is an 
utterly lawless being, as we have already 
shown, when we deduced from this very 
state of things the necessity of one form 
of government for all mankind. It is 
true, under the so-called law of nations, 
his life, liberty, and the property he car- 
ries with him on his travels^ will be pro- 
tected by civilized governments ; not, 
however, because he as an individual can 
make valid his right thereunto, but be- 
cause those governments fear retaliation 
upon other of their citizens who may 
chance to travel, say in the United States. 
The protection of his life, freedom, and 
property, is not extended to him as a right, 
but as a political expedient, or matter of 
courtesy, to facilitate which ambassadors 
and consuls are appointed. The question 
should, indeed, be clear enough. To con- 
stitute a legal relation two parties must 
make an agreement. But how can the 
citizens of one country make a legal 
agreement with possible future travellers, 
who are not present to execute their part 
of the agreement ? Hence that protection 
afforded by one nation to travellers of 
another nation is simply a political expe- 
dient, and does not confer upon the trav- 
eller, as an individual, any rights at all. If 
a war breaks out between both countries, 
he had better not depend upon any such 
supposed rights. 

Now the proposition to make this tran- 
sitory courtesy a matter of individual 



rights means either to abolish all separate 
govei'nments, or it means absurdity and 
injustice. It means the abolition of all 
separate governments if the doctrine is 
carried out logically — if each country 
obliges itself to thus protect all the rights 
of every citizen of the other country ; for 
such an agreement between two countries 
involves the establishment of a higher 
power, which can take care that the agree- 
ment is observed on both sides. This 
higher power must be a general form of 
government for the two lower forms of 
government, which thereby confederate 
together into a union. 

Or it is an absurdity. For if two coun- 
tries agree to protect the rights of the 
citizens of each without establishing a 
common government, they make an agree- 
ment which can never be enforced. 

Or it is an injustice. It is an injustice 
when two countries agree to protect the 
rights of only one class of their citizens, 
for instance, of authors and inventors. 
What privileges have these men that they 
should lay claim to a peculiar right ? 
What justice is there in taxing the work- 
ingmen of England to pay for the legal 
measures which may be necessary to se- 
cure to an American author such a copy- 
right under an international law? How 
can the American citizen ask from all the 
citizens of England a right for which he 
confers no reciprocal benefit, since he is 
not a member of their commonwealth, and 
hence has not agreed to protect their 
rights ? 

It is all nonsense to speak about the 
indirect benefit which will accrue to the 
people of both countries from the addi- 
tional exertions of literary men when 
their labors shall be made more profitable 
by such an international copyright law. 
The works of literary men who need such 
a stimulus will confer no benefit, but pos- 
itive injury, to the people. There never 
was a book written for money which might 
not as well have been left unwritten. 
To a man of science, or to a true artist, no 
inducement of additional pay would be an 
incentive to additional labor. 

" The Congress shall also have power to 
exercise exclusive legislation in all cases 



j^nd the Prohhms of the Future. 



15 



whatsoever, over such district (not exceed- 
ing ten miles square) as may, by cession 
of the particuhir States and the accept- 
ance of Congress, become the seat of 
government of the United States, and to 
exercise like authority over all places pur- 
chased by the consent of the Legislature of 
the State in vrhich the same shall be, for 
the erection of forts, magazines, arsenals, 
dockyards, and other needful buildings." 

Also, "to declare the punishment of 
treason ; but no attainder of treason shall 
work corruption of blood, or forfeiture, 
except during the life of the person at- 
tainted. Treason against the United 
States shall consist only in levying war 
against them, or in adhering to their ene- 
mies, giving them aid and comfort. No 
person shall be convicted of treason unless 
on the testimony of two witnesses to the 
same overt act, or on confession in open 
court." 

The framei's of the Constitution were 
thus explicit in defining the crime of trea- 
son, and limiting its punishment — whilst 
in all other cases the definition and pun- 
ishment of crimes is left to the law-making 
power, Congress — because the charge of 
treason and rebellion has, in all liberal 
countries, been the great lever whereby 
one political party has endeavored to put 
the opposite party out of power.* There 
is no greater danger to republican coun- 
tries than the making use of this charge 
of treason by one party against the other. 
When one party raises the cry of traitors 
and rebels against an opposite party, in 
order to maintain itself in power, repub- 
lican freedom is in danger of utter anni- 
hilation. 

"The Congress shall have the power to 
admit new States into the Union ; but no 
new State shall be formed or erected 
within the jurisdiction of any other State; 
nor any State be formed by the junction 
of two or more States, or parts of States, 
without the consent of the Legislatures 
concerned as well as of the Congress." 

This clause involves two problems : the 
admittance of new States, and possible 



* See Madison's remarks on this subject in 
the Federalist. 



changes in the geography of existing 
States. In regard to the first, it was gen- 
erally held, previous to the purchase of 
Louisiana, that the Constitution did not 
authorize the general government to ac- 
quire new territory or admit any foreign 
people into the Union. Jefferson, who 
made that purchase, held the same views, 
and desired the purchase ratified, after 
the act, by an additional clause to the 
Constitution authorizing such purchases. 
But such an amendment was never made, 
and the legal construction of that part of 
the above clause is therefore unsettled, 
except in so far as the frequent actual 
purchases of new territories may be held 
to have settled it. Madison's commentary 
in the Federalist would seem to indicate 
that the admittance of new States, other 
than those which might arise from the terri- 
tory held at that time by the United States, 
was foreseen in the new Constitution, 
since he regards it in that respect superior 
to the Articles of Confederation, which 
merely made provision for the future ad- 
mission of Canada and the other British 
colonies into the confederation. There is, 
however, an a priori principle for the so- 
lution of this problem, which settles the 
whole dispute. No form of government is 
complete which does not embrace the whole 
race of mun. To be rationalj a form of 
government must therefore afford in its 
constitution a possibility for this, its uni- 
versal extension. The Constitution of the 
United States cannot realize its object, to 
secure the rights of each individual, unless 
it provides for the admittance of all other 
States in the world into the Union in some 
shape or another; and if our republic 
should refuse to do so, the rejected States 
would have the right to make war upon 
the United States as constructing an obsta- 
cle to the supreme rule of the law over 
the earth. 

The question might arise as to where 
the power is vested to admit new States. 
Clearly enough in Congress, although it 
is not specifically granted ; for Congress 
is the sole judge of qualifications of its 
members, and by declaring delegates from 
any Territory or State to be entitled to 
seats in Congress, Congress virtually de- 



16 



Our Form of Government 



clares that State a member of the Ameri- 
can Union. The purchase of a territory 
from another power is, of course, unlaw- 
ful, (for a territory is not the property of 
any government, but simply of the indi- 
duals who inhabit or may inhabit it), and 
is to be regarded as the purchase of any 
other article to which the possessor has no 
title whatever, but for whose vaeve posses- 
sion it is advantageous to pay a certain 
equivalent. The seller having no title to 
the territory, the purchaser, of course, 
also has none. The whole transaction is 
not a legal one at all, but simply one of 
expediency — one of might, not of right. 

The second part of the clause prohibits 
Congress from changing the local forms of 
government established by the people at 
the same time they established their gen- 
eral form of government, unless the people 
of such geographically specified parts of 
the whole consent to it. This is an essen- 
tial provision, since, as we have shown, 
each State is in a confederate republic a 
check upon the general government, and 
an arbitrary change in the number and 
position of the several States by Congress 
would lead to an endless "gerrymander- 
ing," to the great detriment of the people. 
On the other hand, it is suggested by this 
clause that such changes may become 
wise; and when it is considered that the 
thirteen original States have now increas- 
ed to thirty-six, without essential changes 
being made in their constitutional repre- 
sentation, it seems entirely probable that 
a new geographical division of the whole 
Union into States, by and with the con- 
sent of the inhabitants of such States, of 
course, might be a wise measure. 

" The Congress shall have the power to 
dispose of and make all needful rules and 
regulations respecting the territory or 
other property belonging to the United 
States; and nothing in this Constitution 
shall be so construed as to prejudice any 
claims of the United States, or of any 
particular State." 

From what we have said above, the cor- 
rect construction of this paragraph, which 
involves the famous squatter sovereignty 
doctrine, is immediately apparent. A true 
title to the territories the United States 



do not hold; at the utmost a title by 
courtesy, or by the force of might. The 
present paragraph does not conflict with 
this view, since it only allows to Congress 
the right to make "rules and regulations" 
respecting these territories. With such 
rttles and regulations the right of property 
of the squatters is entirely reconcilable. 
The squatters settle down, take possession, 
and become owners. They then proceed 
to establish a government. Congress can- 
not force them to send representatives to 
Congress, but only to establish a "repub- 
lican form of government^' — that is to 
say, a form of government which may be- 
come universal, and hence certainly apart 
of otir own at some future time. By es- 
tablishing preemption laws, and by selling 
all public lands at an extremely low figure, 
Congress in point of fact recognizes the 
right of the first settler to take possession 
of so much of the public lands as he may 
~ be able to cultivate ; for the price at which 
the lands are sold is not sufficient to pay 
for the expenses incurred in surveying 
them, and in establishing land ofiices, &c. 
Land grants are, of course, utterly illegal. 
" The United States shall guarantee to 
every State in this Union a republican 
form of government, and shall protect 
each of them against invasion, and on ap- 
plication of the Legislature, or of the 
Executive when the Legislature cannot be 
convened, against domestic violence.'^ 

Here we have it, therefore, clearly stated 
that it is one of the objects of the general 
form of government to protect the indi- 
viduals of each State against possible 
party despotism. For a "republican form 
of government" is one which implies the 
consent of all individuals to its acts. 
When such consent ceases, the citizen who 
deems himself despotically treated prefers 
a suit, and the United States, in guaran- 
teeing to the State a republican form of 
government, promises to carry out the 
final decision of- the courts in the case of 
such citizen. This is the only correct con- 
struction of that clause. For the fact 
that the government of a State is not re- 
publican can be proved only if one or more 
of its citizens express their dissent from 
its acts. The question then arises whether 



And the Problems of the Future. 



17 



the dissenting citizens or the government 
are in the wrong — a question which the 
Constitution provides only the courts shall 
settle, and Congress has no other duty 
than to see that the final decision of the 
courts is carried out. Thus Mr. Garesche 
recovered, through the Supreme Court, a 
right unjustly taken away from him by 
the State government of Missouri. The 
Supreme Court merely pronounced the 
unconstitutionality (unrepublican charac- 
ter) of the act ; and Congress would have 
been bound to protect Mr. Garesche' against 
the government of his State, if that State 
governmnet had refused to comply with 
that decision. Congress, not having judi- 
cial power, cannot of itself decide, there- 
fore, whether a State has a republican 
government or not." 

The " protection against domestic vio- 
lence" signifies, likewise, that no citizen 
who deems himself injured or treated by 
his State government in an unrepublican 
manner shall take the law in his own hand. 
lie must appeal to the courts for redress ; 
and if he uses violence the government of 
his State is entitled to the support of the 
forces of the general government, al- 
though the State government may have 
been legally in the wrong, and the rebel in 
the right. For so long as a form of gov- 
ernment aflfords possibility of legal redress, 
resort to violence is an overthrow of re- 
publican government, and must be sup- 
pressed by the whole power of the general 
government. 

" The Congress shall have the power to 
levy and collect taxes, duties, imposts and 
excises, to pay the debts and provide for 
the common defence and general welfare 
of the United States ; but all duties, im- 
posts and excises shall be uniform through- 
out the United States." 

It is to be observed that the levying of 
taxes, &c., is authorized only for the spe- 
cific purposes of paying debts and provid- 
ing for the common defence and general 
welfare; and that the expenditure of 
moneys for other purposes is unconstitu- 
tional. 

" The Congress, whenever two-thirds of 
both houses shall deem it necessary, shall 
propose amendments to this Constitution, 



or on the application of the Legislatures 
of two-thirds of the several States, shall 
call a convention for proposing amend- 
ments, which, in either case, shall be valid 
to all intents and purposes as a part of this 
Constitution, when ratified by the Legisla- 
tures of threefourths of the several States, 
or by conventions in three-fourths thereof, 
&c. ; provided that no State, without its 
consent, shall be deprived of its equal 
suffrage in the Senate." 

It is clear, from what we have said be- 
fore, that one part of the fundamental 
compact of a people must be unchangeable 
— namely, that which declares the inalien- 
able rights of each citizen, and which, in 
our form of government, is contained in 
the Declaration of Independence. It ia 
equally apparent that the other part, which 
specifies the manner in which these rights 
shall be secured to each individual, must 
be changeable, since, as a work of art, it 
is necessarily subject to infinite perfecti- 
bility. No constitution is rational which 
does not provide for this final mode of re- 
dressing wrongs which may have resulted 
from imperfect organization, because it 
fails to provide against revolution. 

Now, since a constitution must be 
adopted by the unanimous consent of 
every individual of whom it is to make a 
citizen, amendments would likewise seem 
to require unanimity. The reason of this 
unanimity lies in the inviolability of con- 
tracts. A number of citizens have gath- 
ered into a State organization to secure 
their inalienable rights. After much labor 
they perfect a constitution which seems to 
each to guarantee him perfect security in 
the possession of those rights. He does 
not enter the State unless he is convinced 
of this security, and only because he is 
convinced of it. Now, if the others should 
proceed to change that constitution in such 
a manner as would appear to him to fur- 
nish a very imperfect security, they could 
not lawfully force him to give his consent 
to it, and his protest — though that of a 
single individual — would invalidate the 
whole new constitution. This doctrine is 
generally recognized in politics by requir- 
ing very large majorities in cases of con- 
stitutional changes, and the distinction 



18 



Our Form of Government 



between majorities for the constitution 
and other majorities is this : in the con- 
stitution, if unanimously adopted, each 
individual has expressed his willingness 
to submit to the action of bare majorities 
under certain circumstances, being con- 
vinced that the constitution prescribes 
such other checks as will prevent those 
majorities from asserting despotic author- 
ity. 

But how is this unanimous majority, in 
the case of constitutional amendments, 
ever to be obtained ? A mere voting 
against the amendment would not imply 
unchangeable objection to it as a whole ; 
and hence it has been considered that by 
requiring a very large majority the con- 
scientious opponents of a change will be 
so few as readily to agree to a separation 
from the commonwealth — i. e. to emigra- 
tion. Our Constitution, in requiring the 
incentive to amend to proceed from two- 
thirds of the States, and the ratification to 
be completed by three-fourths, approaches 
an absolute majority as near as seems pos- 
sible. 

Finally, " the Congress shall have power 
to make all laws which shall be necessary 
and proper for carrying into execution the 
foregoing powers, and all other powers 
vested by this Constitution in the Govern- 
ment of the United States, or in any de- 
partment or officer thereof." 

That is to say, Congress has the power to 
apply the powers delegated to it to specific 
cases — almost a superfluous clause. 

These specific powers, which establish 
definitely enough the relations between the 
general government and the governments of 
the several States, and scarcely permit — ex- 
cept in the few cases noticed — a collision 
between both parties, are all the powers 
which the general government can lawfully 
exercise; and it would seem superfluous to 
prohibit Congress from exercising any 
others. It was considered expedient, how- 
ever, to add some restrictions, partly be- 
cause history had shown a tendency on the 
part of legislative bodies to usurp judicial 
power, and partly to secure equal laws for 
the several States as States. We now pro- 
ceed to examine these restrictions. 



"No bill of attainder, or ex post facto 
law, shall be passed." 

Congress is prohibited from passing bills 
of attainder, because such bills involve a 
judicial proceeding, under the cloak of a 
legislative enactment. No legislative body 
shall have the power to pass any enact- 
ment which has the effect of a judicial 
sentence. 

Ex post facto laws are prohibited, be- 
cause their passage would be a violation 
of existing laws. Whatsoever is not pro- 
hibited, citizens are at liberty to do. 
Whatsoever punishment is affixed to a 
crime, that, and no other, must be in- 
flicted. All ex post Jacto laws would be 
judicial decisions, under the cloak of legis- 
lative enactments. It may here be observed 
that ex post facto laws can be clothed in 
the garb of judicial decisions. If a judge 
in a law case interprets a law in an arbi- 
trary manner, giving the law a meaning 
which it obviously has not, he thereby 
makes his decision an ex post facto law, 
for he decides the suit upon a construction 
of law which was utterly unknown to the 
parties of the suit. 

"No capitation, or other direct tax, shall 
be laid, unless in proportion to the census 
or enumeration hereinbefore directed to 
be taken." 

'' No tax or duty shall be laid on articles 
exported from any State." 

" No preference shall be given by any 
regulation of commerce or revenue to the 
ports of one State over those of another, 
nor shall vessels, bound to or from one 
State, be obliged to enter, clear, or pay 
duties in another." 

"No money shall be drawn from the 
treasury, but in consequence of appropri- 
ation made by law," &c. 

" No title of nobility shall be granted by 
the United States." 

"Judgment in cases of impeachment 
shall not extend further than to removal 
from office and disqualification to hold and 
enjoy any office of honor, trust or profit, 
under the United States; but the party 
convicted shall, nevertheless, be liable 
and subject to indictment, trial, judgment 
and punishment, according to law." 



^nd the Problems of the Future. 



19 



That is to say, again, the legislative body 
must not usurp judicial powers, even in 
cases affecting government officials. 

"No religious test shall ever be required 
as a qualification to any office or public 
trust under the United States." 

These are all the restrictions upon the 
power of the General Government con- 
tained in the original Constitution. They 
did not seem, however, sufficient to the 
Patrick Henry party, who foolishly imagin- 
ed that Congress might possibly usurp 
powers not granted expressly, and that the 
most effective way to prevent such usurpa- 
tion would be to esp^-essly prohibit Con- 
gress from exercising others. The first 
three of the famous amendments which 
were accordingly added to the Constitu- 
tion have this object in view. 

The impropriety of such prohibitions, 
however, is immediately apparent. The 
first of these famous amendments, for in- 
stance, says that Congress shall make no 
law respecting an establishment of religion, 
or prohibiting the free exercise thereof, or 
abridging the freedom of speech or of the 
press, &c. But what need is there to 
prohibit Congress from exercising these 
powers, unless under the presupposition 
that legislative bodies have these powers ? 
The original Constitution proceeds from 
the assumption that Congress has no other 
powers than those expressly conferred by 
the people in the Constitution, and that it 
is useless to prohibit powers which it has 
not. No government has the power to 
prohibit freedom of speech, or to establish 
a religion ; and the assumption in this 
amendment, that such power does exist, is 
a grave defect in our Constitution. The 
second amendment, providing that the 
right of the people to keep and bear arms 
* shall not be infringed, is not only unneces- 
sary, but .a self-cancelling proviso. "A 
well regulated militia," however, -^neces- 
sary to the security of a free State," may 
happen to be engaged in unlawful resist- 
ance to the decisions of the supreme power, 
in which case their "right to bear arms" 
must be considerably " infringed upon." 
Indeed, no person has an a priori right to 
bear arms, and in large cities it is usually 
forbidden to carry weapons. A legislative 



enactment prohibiting the use of arms 
altogether would be far more rational than, 
this amendment. Another objection to the 
enumeration of rights is this, that it can 
not possibly bo exhaustive, if it goes be- 
yond the three original rights of life, 
liberty and property, and hence leaves 
open the implication that other rights, not 
specified as beyond the reach of govern- 
ment, are within its reach. The framers 
of the amendments were conscious enough 
of this, it seems, for the ninth article of 
the amendment says : 

"The enumeration, in the Constitution, 
of certain rights, shall not be construed to 
deny or disparage others retained by the 
people." 

An effective bill of rights must be ex- 
haustive, and this it can only be in general 
terms. The Declaration of Independence 
is, on that account, the most effective of 
all bills of right ; and the effort to make 
the Codstitution more perfect, by specify- 
ing some of the rights derived from the 
rights proclaimed in that act, has not been 
a successful one. 

VIII. 

Whether it was necessary to establish, 
moreover, in the Constitution those general 
forms of law, which are regarded as effec- 
tive safeguards of individual freedom, such 
as trial by jury, freedom from being put 
in jeopardy of life and limb twice for the 
same offence, &c., may be well questioned. 
Those forms of law are not original rights, 
but,*to a great extent, merely applications 
of them ; applications which partly need 
not be specified, and partly may be, with 
equal effect, specified in the statute books 
of the several States, or in the congres- 
sional enactments. 

Of these forms of law, the original Con- 
stitution specifies two : 

" The privilege of the writ of habeas 
corpus: shall not be suspended, unless when, 
in cases of rebellion or invasion, the public 
safely may require it." 

The last part of this clause seems almost 
to annul the whole ; for it is precisely in 
cases of rebellion or invasion that the writ 
of habeas corpus becomes invaluable ; and 
it originally was obtained from King John 
for those very cases. When actual war 



i 



20 



Our Form of Government 



rules, the habeas corpus suspends itself, 
because the military power (might) sus- 
pends law (right). It is a self-contradic- 
tion that law should provide for its own 
suspension. The habeas corpus should 
never be suspended by any power other 
than the military. 

" The trial of all crimes, except in cases 
of impeachment," which are no trials in 
law, '' shall be by jury." 

It is purely a question of expediency 
whether trials by jury are the most effec- 
tive mode of administering justice or not ; 
and hence, the right to trials by jury is in 
this paragraph confined to criminal cases, 
leaving to the several States the power to 
provide any other form of trial for civil 
cases. So great, however, was the venera- 
tion in which the jury system was held, 
that in the amendments to the Constitu- 
tion the right to a jury is also extended to 
all cases exceeding twenty dollars. 

The constitutional establishment of these 
two forms of law^ over the whole Union, as 
rights of each citizen, did not seem suffi- 
cient to the opponents of the Constitution . 
and hence, in the amendments to the Con- 
stitution, a large number of forms were 
added, which are not so much checks upon 
the General Government as upon the Gov- 
ernments of the separate States, and as 
regulative principles for the decision of 
the Supreme Court. They are contained in 
articles 4, 5, 6, 7 and 8, of the amendments 
to the Constitution. Whether they are 
properly parts of the Constitution — of* the 
instrument which constitutes the govern- 
ment of a people — is questionable. The 
Constitution is not properly a legislative 
enactment, and it mcay be well questioned 
whether a legislative enactment can obtain 
constitutional sanctity and legality by 
merely being incorporated in the Constitu- 
tion. 

The original compact of a commonwealth 
is, as we have said before, a declaration of 
the original rights of each citizen. This 
compact, this declaration, is, in the case of 
our form of government, the Declaration 
of Independence. The Constitution con- 
stitutes the Government, by means whereof 
those rights are to be secured to each indi- 
vidual, and all law disputes are to be 



decided by the regulative principle of those 
original rights. Whether a legislative en- 
actment is made part of the Constitution 
or not, does not give it of itself validity, 
but simply whether it agrees with the 
principle of those original rights. The 
final grounds of decision of all constitu- 
tional law questions must be traced to the 
Declaration of Independence. 



In determining the relation between the 
General Government and the Governments 
of the several States, we have seen that, in 
regard to the General Government, this 
relation could only be established by af- 
firmative grants of power. The General 
Government is to have only these powers, 
and none others. Hence, all the others — 
an infinite number — "are reserved to the 
States respectively, or to the people." It 
was superfluous to state this in the Consti- 
tution itself. If, therefore, the powers of 
the States are to be determined in their 
relation to the General Government, it can 
only be done negatively, by prohibiting 
certain powers to the State, namely, all 
those powers the exercise of which would 
cancel the powers delegated to the General 
Government. They are a fixed number, 
and specified in section 10 of the first arti- 
cle of the Constitution : "No State shall 
enter into any treaty, alliance, or confed- 
eration; grant letters of marque and re- 
prisal; coin money; emit bills of credit; 
make anything but gold and silver coin a 
tender in payment of debts ; pass any bill 
of attainder, ex post facto law, or law im- 
pairing the obligation of contracts ; or 
grant any title of nobility ; nor lay any 
imposts, or duties on imports or exports, 
&c. ; nor lay any duty of tonnage ; keep 
troops or ships of war in time of peace ; 
enter into any agreement or compact with 
another State, or with a foreign power, or 
engage in war, unless actually invaded, or 
in such imminent danger as will not admit 
of delay." 

The mode of procedure in a case of vio- 
lation of this section by any State is not 
specified in the Constitution, though this 
is a question of great importance, as, for 
instance, if two or more States should 



^nd the Problems of the Fvture. 



21 



confederate together. The assumption 
seems to be, that there will always be 
some citizens in such State or States who 
will bring the matter before the courts. It 
is clear that Congress cannot take upon 
itself to determine whether a State has 
violated this section of the Constitution ; 
and even if it had the power so to deter- 
mine, what punishment could it prescribe, 
for instance, if a State had emitted bills 
of credit ? The same rule evidently applies 
to the States which applies to the General 
Government, namely, that it is the prov- 
vince'of the United States courts to decide 
whether either party has transcended the 
powers conferred in the Constitution ; 
for if Congress had the power to decide 
whether States have transcended their 
powers or not, the States might justly 
claim, as indeed they have done, that it 
is their prerogative to decide whether Con- 
gress has transcended its powers or not. 
It is only in cases of insurrection that 
Congress has the power to interfere with- 
out judicial process, and for the reason 
that an insurrection of the people and a 
suspension of the power of the courts 
always go together, and that hence judi- 
cial process is rendered impossible. If the 
courts are not suspended, there is no insur- 
rection. In all other cases, the complaint 
against State authorities must be preferred 
in the courts. For instance : A citizen 
refuses to accept bills of credit which a 
State has declared legal tender. He ap- 
peals to the United States Government, 
through the courts, and that government 
is bound to protect him. 



Having thus delegated to the General 
Govei-nment enumerated powers, prohib- 
ited to the States the exercise of powers 
which would annul them, established a 
number of legal forms over the whole ex- 
tent of the Union, as the best known safe- 
guards to individual freedom, which no 
State Government should have the power 
to suspend, and thus completed the deter- 
mination of the relation between the sev- 
eral State Governments and the General 
Government, the Constitution moreover 



establishes the form of the General Gov- 
ernment. This form is threefold, separa- 
ting into the legislative, executive, and 
judicial ; and the reason for this separa- 
tion is, that each department of govern- 
ment, whilst aiding, may at the same time 
be a check upon the others, and render 
impossible any abuse of power. 

The necessity for such a check upon 
itself in a form of government is as appa- 
rent as the necessity of the conception of 
law itself. Men enter into a legal relation, 
not because one person has actually vio- 
lated the rights of the other, but because 
the possibility exists that he may violate 
them, and this possibility must be re- 
.nioved. Law is established in order that 
it may not be exercised, has existence only 
when it does not exist, and does not exist 
when it has existence. This itself-cancel- 
ling character of the conception of the 
law shows it most clearly to be merely an 
intermediate conception, a conception ex- 
isting not for the sake of itself, but of 
another conception, namely, the concep- 
tion of morality. Again, men establish a 
government, not because some one has 
applied the law wrongly, or has neglected 
to apply it, but to prevent the possibility 
of the law ever being wrongly applied, or 
not applied when a violation of rights has 
occurred. But what power is to prevent 
the Govermnent from neglecting or wrong- 
fully applying the law ? Here, again, the 
itself-cancelling process must be intro- 
duced, a contrivance invented, which shall 
cancel the Government the moment it 
attempts to violate the law, or refuses to 
apply it. The whole object of government 
is to make itself superfluous; it exists only 
to cancel itself by infallibly executing the 
law; and in order that it may never have 
any other object, may never exist merely 
to maintain itself, it must return into itself 
by means of a division of its powers, and 
a system of checks thereby established. 

The necessity of this division of powers 
has indeed been recognized by all modern 
republicans, Madison says: "The gath- 
ering of all powers — the legislative, execu- 
tive, and judicial powers — into one body, 
whether it be a single person, or composed 



-<««»ieaH»i,,m BW>*'*»»"^^ 



22 



Our Form of Government 



of many, an hereditary and self-made 
regent, or an elected one — is the true defi- 
nition of tyranny." Montesquieu says : 
" Freedom is impossible where the legisla- 
tive and executive powers are united in 
the same person or body, and where the 
judicial power is not separated from the 
legislative and executive powers. Impos- 
sible in the first case, because the monarch 
or senate may order tyrannical measures, 
in order likewise to execute them in a 
tvrannical manner ; impossible in the sec- 
ond case, because the judge is then also 
legislator, and life and liberty of the citi- 
zen can therefore have no security." 

It is objected that such a division of 
powers divides and weakens the govern- 
ment. This is true, and not true. It 
weakens the government, most certainly 
— nay, renders it utterly impotent, when- 
ever it proposes itself to violate the law, or 
to execute it unjustly — but it consolidates 
all the strength of government whenever 
the law is to be justly executed. For these 
several powers are not separate agencies ; 
they are all connected with each other, 
and all conjointly, whenever the law is to 
be justly executed. It was precisely on 
account of this connection between them, 
that the Patrick Henry party assailed the 
Constitution, alleging that it established 
in fact a single central government. There 
is as much truth in this allegation as in 
the charge that our form of government is 
divided against itself. It is a single cen- 
tral government in every constitutional act 
either department may exercise; it is di- 
vided against itself, and cancels itself, in 
every unconstitutional act. It can main- 
tain its existence only by remaining within 
its limits, and it ceases to exist the moment 
it transgresses them. 

The question may, however, be properly 
raised : Why should the government be 
divided precisely into these three depart- 
ments ? 

Originally, the people, having come to- 
gether as individuals, and declared each to 
respect the expressed rights of all others, 
delegate to one government, established in 
the Constitution, the power necessary to 
protect in each individual these rights. 



But this one government, consisting of a 
certain number of officials, and wielding 
the whole power of the people, might at 
any time transcend the powers confei'red 
in the Constitution, without the people 
having redress against such usurpation of 
power. Supposing this one body of gov- 
ernment is called Congress, and its duty 
to be to pass only such laws as will be 
necessary to guarantee the rights of each 
individual citizen, as expressed in the 
Constitution, and on no account to legis- 
late for its own benefit — (it is never to be 
an end for itself, bat merely a means) ; 
let us Suppose this Congress to appoint 
courts all over the country to assist in this 
execution of its laws — would any such 
courts have the right to decide a suit be- 
tween a citizen and Congress itself — in 
other words, to pass upon the constitu- 
tionality of an act of Congress ? Clearly 
not; such a judiciary, not established by 
the people themselves as a check, but 
established by the Government as part of 
its own machinery, would have no other 
duty to perform than to apply all the laws 
passed by Congress to the cases brought 
before them. Such is the case in England, 
where all acts of Parliament are the 
supreme law of the land, and courts must 
so regard them. All the courts of law in 
our own republic, which simply assist in 
the carrying out of the laws passed by the 
legislative body, no matter how they are 
elected or appointed, are only a branch of 
the great body of government, of the legis- 
lative body — as, indeed, such court de- 
cisions, in course of time, become the 
positive law of the land, and they afford 
no guarantee against congressional usurpa- 
tion. 

Quite a different body is the judiciary 
proper — that is to say, the judiciary pro- 
vided for in the Constitution as a separate 
and independent body. This judiciary is 
established to try all cases wherein the 
Government itself is a party, or, in other 
words, to pass upon the constitutionality 
of the acts of Congress. By the establish- 
ment of it, each citizen of the United 
States has received a guarantee that the 
immense power of Congress shall never be 



And the Problmis of the Future. 



23 



exercised to touch a single one of the 
rights guaranteed to him in the Consti- 
tution. 

That this was the true intent in the 
establishment of the Federal Judiciary, 
appears clearly from the Constitution it- 
self. All other powers granted to it are 
merely accidental, but this power of pass- 
ing upon the constitutionality of the acts 
of Congress is its absolutely necessary 
and distinctive characteristic. Only by its 
means has each citizen a guarantee against 
Congress and the President. In so far, 
therefore, the judiciary is decidedly the 
highest body of the Government — but only 
in so far. Congress is the highest form 
of our Government, so far as the applica- 
tion of the Constitution to the conditions 
of the country is concerned; and the judi- 
ciary is its highest form so far as the 
ascertainment of the constitutionality of 
its acts is concerned. Each is equally the 
highest, or neither is the highest. 

If thus the judiciary is an a priori neces- 
sary form of government, the case is dif- 
ferent so far as the so-called executive 
power is concerned. Indeed, Congress is 
more of an executive body than the Presi- 
dent ; and in separating the executive body 
of the Government into these two forms. 
Congress and President, we need look for 
no ground of an a priori character. The 
whole question assumes the aspect of ex- 
pediency, and can only be discussed on 
that field. The motive on this field is 
clear enough : to strengthen the judiciary, 
which could not be strengthened in itself 
by weakening the executive, namely. Con- 
gress. It Avas for this reason that part of 
the executive power (the chief command 
of all armies, the appointing power, and 
the veto power,) was conferred upon a 
President, elected by the people, and that, 
moreover, Congress was divided into two 
bodies, a Senate and a House of Repre- 
sentatives. This latter separation has, 
indeed, been proven by experience to be 
of great wisdom. A Congress composed 
of a single House of Representatives might 
be too passionate and contradictory in its 
legislation; a Congress composed of a sin- 
gle Senate might be too slow, too consid- 



erate, too conservative. By separating 
Congress into two bodies, it was possible 
to permit frequent elections for the one 
body without exposing legislation to con- 
stant alteration. 

The House of Representatives is the 
expression of the people of the United 
States as individuals, that is to say, nu- 
merically. Why, nevertheless, in the estab- 
lishment of congressional districts, the 
geographical limits of States should also 
have been considered, is not to be ac- 
counted for logically, and has, indeed, 
often enough led to violent debates. For 
all practical purposes, however, the House 
may be considered as the representative 
body of all the inhabitants of the United 
States, as they are enumerated in the 
census. The question arises : how many 
of these individuals shall be entitled to 
one representative ? It is solely a question 
of expediency-, and has to be decided by 
practical experience. As the chief appre- 
hension will be that Congress may legislate 
to the advantage of one section of the 
whole commonwealth, neglecting the in- 
terests of other sections, it would seem 
unnecessary to make the number of repre- 
sentatives very large. One representative, 
for instance, representing all the individ- 
uals living between the Missouri river and 
the Arkansas line, will be as likely to repre- 
sent all the interests of that section as half 
a dozen representatives representing that 
same section, but each one elected by a 
small part thereof. Moreover, large legis- 
lative bodies are more easily led by dema- 
gogues, and have never been famous for 
prudent legislation. At the adoption of 
the Constitution, when the population of 
this country was very small, it was resolved 
to allow one representative to every 40,000 
inhabitants. But Washington opposed 
this, as being too small a representation, 
and proposed one representative for every 
30,000 inhabitants. This was agreed to. 
As the country became more populated, 
and Congress, under this apportionment, 
threatened to become an anarchical body, 
representation was cut down again. In 
1842, it was provided that one representa- 
tive should be allowed for every 70,680 



*»«°»«Wi«M» 



ioli 



24 



Our Form of Government 



inhabitants of a State, and an additional 
one for a fraction over one-half of that 
number. The rule willj of course, be 
changed constantly. As the country ex- 
tends, and the number of States increases, 
it will become imperatively necessary to 
cut down the number of representatives to 
a rational figure ; and the time may not be 
far distant when few States will have more 
than four or five representatives in Con- 
gress. 

Every male citizen twenty-five years of 
age, and having been a citizen of the Uni- 
ted States for seven years, is eligible to 
the House of Representatives. 

To hold office is not a right, but an 
honor or privilege. Conditions may be 
attached to it, without infringing upon 
the rights of citizens, provided these con- 
ditions are attainable to all citizens 
equally. Religious tests a-re therefore for- 
bidden in the Constitution. The Constitu- 
tion stipulates very few conditions — indeed, 
only two: age and citizenship — from men, 
but it altogether excludes women from 
the holding of office. The question 
arises : if the conditions must be the same 
for all citizens, how can women, as a sex, 
be rendered ineligible to office? The an- 
swer is, women are not excluded by reason 
of their sex, but by reason of their present 
or prospective maternity, which will ren- 
der them physically incapable of perform- 
ing the duties of their office. If women 
wish to claim it as a right to be eligible 
for office, it is certainly very unfortunate 
for them that nature has only rendered 
women capable of being mothers. But it 
is a matter which they will have to settle 
with nature. The law says, " all persons 
who may possibly become mothers, and 
thus be physically unfit for holding office, 
Bhall be ineligible ;" and that this provision 
does not apply to men, is certainly not the 
fault of men. 

"Members of the House of Representa- 
tives shall be chosen by the people of the 
several States, and the electors in each 
State shall have the qualifications requi- 
site for electors for the most numerous 
branch of the State Legislature." 

There is an important implication here, 



namely, that the same electors who choose 
the most numerous branch of the State 
Legislature do not necessarily choose its 
less numerous branch, though none of the 
States do actually make such a distinc- 
tion. Nearly all States constitute every 
male citizen an elector, who is twenty-one 
years of age. Some States require an ad- 
ditional property qualification; and most 
of the States also require citizens to be 
" white." Women have as yet been ad- 
mitted to suffrage in no State. The ques- 
tion arises here : Is this problem of suf- 
frage one which, so far as the general 
government is concerned, ought properly 
to be left to the discretion of the States ? 

We have sufficiently shown that, in the 
original organization of a commonwealth, 
each individtial must openly or tacitly ex- 
press his agreement to it. This expression 
is what is called voting. In the original 
organization each individual is therefore 
a voter, and if women and children do not 
vote, and yet remain in the State, they 
express thereby their agreement to the or- 
ganization. Whoever does not vote, and 
yet remains in the State, is considered as 
having voted in favor of the organization. 
Each individual is a voter because he has 
certain inalienable rights, and can only 
secure them by voting, or by entering a 
State organization. The Constitution of 
the United States was thus agreed to orig- 
inallj'^ by every individual inhabitant. 

There is also no doubt that the original 
endorsers of such a constitution can dele- 
gate their right to choose government offi- 
cials to a portion of themselves. Thus, 
for instance, the President and Senate 
may be empowered to elect members of 
the Supreme Court; and if it were con- 
sidered expedient, it would not be unlaw- 
ful for the people of a State to empower 
its House of Representatives to choose the 
Senators. 

But another question is : Whether the 
original people have the right to delegate 
away all their power to elect government 
officials, retaining onJy the power to vote 
on constitutional amendments, Avhich we 
have shown must be submitted to all the 
individuals of a State? 



And the Problems of the Futnre. 



25 



Thft answer to this question settles the 
famous suffrage question ; and the ground 
of deciding it lies in this consideration : 
One generation of citizens dies in every 
commonwealth, and another one arises in 
its place. This does not happen all at 
once, but constantly. Each month a num- 
ber of citizens die, and are replaced by 
new members. These new members oc- 
cupy precisely the standpoint which the 
original citizens occupied before the es- 
tablishment of the Constitution— they are 
not yet citizens, but merely candidates for 
citizenship. For them there exists as yet 
no State organization, but merely the pos- 
sibility to enter one. No one can compel 
them to agree to the form of government 
which they find ready made for them, and 
unless they convince themselves that such 
form of government affords complete se- 
curity for their inalienable rights, they 
certainly will not enter it. But such a 
conviction can only be produced if the 
possibility is extended to them to change 
the constitution, and this possibility is 
given in the general elections, in which, for 
that very reason, each individual has the 
same right to participate as he has to vote 
upon the constitution. To exclude him 
from that right would be to exclude him 
from all legal relation to other men, and 
give him the right to make war upon such 
a commonwealth. 

General elections are, therefore, the 
means whereby the new generation, which 
is constantly growing up, can become 
members of a commonwealth, and where- 
by the constitution — which otherwise 
would never become operative, since it 
would be constantly before the new citi- 
zens for their vote — can become perma- 
nent. 

The general government cannot leave it, 
therefore, to the several States to determ- 
ine the qualification of electors ; nor can 
itself prescribe any qualification other 
than that which is necessary to determine 
at what period the new candidates for 
citizenship may thus express their desire to 
become members of the commonwealth. 
Precisely in the manner in which the prin- 
ciple requires that general elections shall 



be held, but does not express how often ; 
so it also requires that each new born or 
immigrated person shall become a member 
of the commonwealth, but does not express 
at what time. This fixing of the time of 
residence, therefore, for both native born 
and immigrated persons is the only lawful 
"test" for suffrage. Sex is no disquali- 
fication, for it does not physically disqual- 
ify — unless, indeed, the monstrous doc- 
trine is upheld that every citizen is liable 
to military duty ; in which case, indeed, 
■Vromen would be disqualified. If women 
prefer, as is probable in the case of all 
good women, to let their husbands vote 
for them, this may be easily arranged. 
Bad women can be disqualified by criminal 
law, affixing such punishment to their of- 
fence. Poverty does not disqualify, for 
the poor have the same rights as the rich ; 
nor are *' tests " of intelligence allowable, 
since the capacity to read and write does 
not give more rights to a person than the 
capacity to play ah instrument or to 
dance a hornpipe. In short, there is no 
other determination of the right of suffrage 
lawful than that through time. 

It is clear that the general government, 
in determining the age required by it of 
its native born electors, would not determ- 
ine it in regard to the electors of the States 
as State organizations, but would leave 
each State to fix it for itself as heretofore. 
For immigrated persons the general gov- 
ernment properly determines it also for 
the several States, by establishing a uni- 
form rule of naturalization. 

" The members of the House of Repre- 
sentatives shall be chosen every second 
year," and '^ the times, places and manner 
of holding elections for representatives 
shall be prescribed in each State by the 
Legislature thereof j but the Congress may 
at any time by law make or alter such reg- 
ulations.'' 

The first provision, providing for elec- 
tions every two years, seems to guarantee 
sufficiently a constant control over the 
Congressional Representatives by the peo- 
ple ; and the second provision, required 
by the additional clause, allowing Con- 
gress the power to prescribe the places 



26 



Our Form of Government 



and manner of holding elections is neces- 
sary for the reason that otherwise a num- 
ber of States might at any time combine 
to hold no elections at all, and might thus 
virtually suspend Congress. 

The Senate is the expression of the peo- 
ple of the United States, not as individ- 
uals, but as members of the several local 
governments, or States, vrhich form the 
whole Union. The principle of this, we 
might call it geographical representation, 
is the same which is at the basis of a con- 
federate form of government, and pointed 
out before, viz., that in each State the 
population divides unequally — some parts, 
along the lines of communication, become 
thickly settled ; others, devoted to agri- 
cultural purposes, cannot support a 
crowded population. It is possible that 
one large city might thus overbalance all 
the rest of a State in the Legislature, if 
representation were equally divided ac- 
cording to numbers. To diminish this 
danger as much as possible, various ex- 
pedients of dividing the ratio of represen- 
tation so as to correspond with the geo- 
graphical divisions of nature have been 
resorted to ; but the most effective one 
seems to be — if the representation for the 
House of Representatives is established ac- 
cording to the number of inhabitants, to 
divide the representation for the Senate 
according to geographical districts or sec- 
tions. By this arrangement the law has 
tried, as it were, to cancel the geographi- 
cal partiality of nature. 

"No person shall be a senator who shall 
not have attained the age of thirty yeai's, 
and been nine years a citizen of the United 
State, and who shall not, when elected, be 
an inhabitant of that State for which he 
shall be chosen." 

The senators are elected by the several 
Legislatures of the States. Congress may 
determine the manner of such election, 
whether in joint session, or by each branch 
of the Legislature separately — for sis 
years, each State choosing two senators. 
Vacancies are filled by the Executive of 
the State until the nest meeting of the 
Legislature. Whether this mode of elect- 
ing the senators through the Legislature 



instead of directly through the people is 
espedient or not is doubtful. There seems 
to be less chance of political intriguing 
in a general election than in an election ■ 
by the Legislature. The term of service 
of senators, sis years, seems not too long 
considering the greater responsibility 
which attaches to the more permanent 
body in legislation. 

Each branch of the Congress has. in 
some peculiarity, exclusive rights. Thus, 
the House of Representatives has the sole 
right to originate bills for raising revenue, 
whereas the Senate has the equally impor- 
tant right of confirming treaties concluded 
by the President, which treaties become 
the " supreme law " of the land. The 
House of Representatives has the sole 
power of impeachment ; the Senate the 
sole power to try impeachments. 



The executive power of the general, gov- 
ernment is vested in a President, who 
holds his ofEce during the term of four 
years, and who is chosen, together with 
the Vice-President for the same term, by 
the people ; not, however, like the mem- 
bers of the House of Representatives, di- 
rectly, but indirectly, through the medium 
of electors, as follows : 

Each State appoints, in such manner as 
the Legislature may direct, a number of 
electors, equal to the whole number of 
senators and representatives to which the 
State may be entitled in Congress. 

In fixing the number of electors — not ac- 
cording to the number of representatives 
alone to which each State is entitled in 
Congress, and which would give to all the 
people of the United States an equal nu- 
merical representation in the Electoral 
College, but according to the number of 
representatives and senators together — 
the Constitution has united numerical and 
geographical representation in the Elec- 
toral College in a peculiar manner. It is 
difficult to understand the espediency of 
this arrangement, which seems more to 
have been an arbitrary yielding to the 
pride of the small States than the result 
of a principle. The qualifications of voters 



And the Problems of the Future. 



27 



for these electors, in such. States as may 
determine to have them elected in a gen- 
eral election, each such State has the 
power to fix at its pleasure, as the Consti- 
tution offers no restrictions. Any State 
may also provide that they shall be elected 
by the Legislature, or appointed by the 
Governor. 

Originally it was the intention to have 
the States appoint electors, who should 
come together untrammelled, and select 
the President. The people were not them- 
selves to espress their preference for Pres- 
ident, but to trust the whole matter to the 
wisdom of the electors. These electors, 
moreover, were not to vote for one person 
as President and another one as Vice- 
President, but simply to cast their votes 
for "two persons" — the person having 
the greatest number of votes, of a major- 
ity of the whole number of electors, to be 
President. 

This original mode of electing the exec- 
utive of the general government seems far 
preferable to the present mode of having 
him elected by electors, who are instructed 
how to vote, and dare not vote differently. 
If the choice simply of the beat men of 
the people, and not of the people them- 
selves, the President will not dare to 
assume himself to be the "elect" of the 
whole people, and try to override the au- 
thority of Congress on that plea. To elect 
the Executive directly through the people 
seems a dangerous proceeding so long as 
the Executive retains the extensive powers 
conferred in the Constitution. To have 
him elected by Congress, and for a short 
period, as some would propose, and as is 
the case in Switzerland, would render the 
Executive completely dependent upon Con- 
gress, and would give constantly rise to 
political intrigues. To have the Executive 
elected in the mode established at present 
is absurd. A return to the original mode, 
if possible, would therefore be a benefit 
to the republic not easily to be overrated, 
particulai'ly in view of the present ten- 
dency on the part of each branch of gov- 
ernment to consider itself the most legiti- 
mate expression of the will of the people. 
The Constitution alone is the true will of 
the people. 



Whether the Executive ought to be re- 
eligible, is a difficult question to settle. 
Under the old mode of electing the Presi- 
dent, it might be safely granted, since 
that mode affords less chance for in- 
trigues ; but under the present system it 
is calculated to induce improper measures 
on the part of the President, whose term 
of office expires, to maintain himself in 
ofiice. 

" The President shall be commander-in- 
chief of the army and navy of the United 
States, and of the militia of the several 
States, when called into the actual service 
of the United States." 

Important as this power is, it is not well 
to be placed in other hands, for the reason 
that a commander-in-chief appointed by 
Congress and not responsible to Congress 
except as a military officer, might under- 
take to disregard the instructions of Con- 
gress ; whereas the President, responsible 
to and connected with Congress, not only 
in his military capacity, but also politi- 
cally, would not dare to dream of such a 
usurpation. Nevertheless, it were well to 
consider whether additional restrictions 
are not required. 

" The President has power to grant re- 
prieves and pardons for offences against 
the United States, except in cases of im- 
peachment" — impeachments not being in 
the nature of trials, and hence not sub- 
jecting, in truth, to punishment which the 
pardon might remove. 

He has also power *' on extraordinary 
occasions to convene both houses of Con- 
gress, or either of them; and in case of 
disagreement between them with respect to 
adjournment, to adjourn them to such time 
as he shall think proper; to receive am- 
bassadors and other public ministers, and 
to take care that the laws be faithfully 
executed." 

"He shall have power, by and with the 
advice and consent of the Senate, to make 
treaties, provided two-thirds of the sena- 
tors present concur." 

The question whether the House of 
Representatives has the right to annul 
treaties, which the Constitution gives the 
President and the Senate the power to con- 
clude, by refusing to make appropriations 



28 



Our Form of Government 



for them, has often been discussed. Wash- 
ington thought (in 1796) that the House 
had no such right, but was bound to make 
every appropriation stipulated in a treaty. 
The question is all the more important, as 
it would be useless to impeach the Presi- 
dent for concluding a treaty deemed in- 
jurious to the country, since his judges, 
the Senate, would necessarily be — at least 
two-thirds of them — accomplices. 

Bills which have passed both houses of 
Congress may be returned by the President 
to the house which originated them, with 
his objections. This important veto power 
which the President wields is limited, how- 
ever, to some extent, by the provision that 
such vetoed bills shall be reconsidered by 
each house, and shall become a law when 
passed by a two-thirds majority of each 
house. Nevertheless, it is a powerful 
weapon against the legislative body, and 
the unlimited authority to exercise it seems 
both useless and dangerous to the public 
welfare. It certainly is not proper that 
the President should have the power to veto 
any bill which may not please his fancy. 
The power is evidently granted chiefly for 
the purpose of preventing Congress from 
passing unconstitutional measures, or as a 
check upon the legislative body before the 
judiciary can decide the disputed question 
in the final instance. 

A still more dangerous power to entrust 
to the Executive, is the power to appoint, 
with the consent of the Senate, all public 
ministers and consuls, judges of the Su- 
preme Court, and all other oflBcers of the 
United States whose appointments are not 
provided for in the Constitution. It is 
true, the people need not elect every gov- 
ernment officer directly, but neither is it 
advisable to delegate to one man the right 
to choose a vast number of such officers. 

There can be no doubt that the powers of 
the Executive ought to be considerably 
curtailed, and the mode of his election ut- 
terly changed. Until this is done, we shall 
not have harmony in our government. The 
President should be both more independent 
and less powerful than he now is. Above 
all, it should be understood that he is not 
like the judiciary, an a priori necessary 
part in thte machinery of government. 



The judicial power of the United States 
shall be vested in one supreme court, and 
in such inferior courts as the Congress may 
from time to time ordain and establish. 
The judges of these courts are appointed 
by the President, with the consent of the 
Senate, and hold their office during good 
behavior. 

Being the weakest of all three branches 
of government, the judicial power has 
necessarily been rendered the externally 
most independent. The judiciary having 
no power and no will, it deserves to be 
particularly protected in its position. It 
can do no harm, either to the legislature 
or to the executive ; all it can do is to 
declare that wrong has been done. To 
make such a declaration, without having 
the power to make it valid, requires cour- 
age, patriotism, and zeal for the supremacy 
of law. The judiciary cannot be made too 
independent in a government. People have 
spoken of judicial despotism, when the 
Supreme Court has declared measures of 
Congress unconstitutional, but such talk 
is ridiculous. The judicial power is the 
best of all guarantees of public freedom. 
There is no possibility that it can ever 
become tyrannical; at the very utmost, it 
may retard necessary changes in the form 
of government. It can only be negative, but 
never can positively violate the law. Hence 
it needs no check, and completes the divis- 
ion of powers as the final one. The people 
should, therefore, above all things, protect 
their judiciary. It is very wrong to sup- 
pose that the legislative body alone is the 
true expression of the will of the people. 
The will of the people is expressed only 
in the Government as a ivhole, but is, above 
all things, laid down in the written words 
of the Constitution. To protect this known 
will of the people against the possible vio- 
lations of the legislative body, is one of 
the most sacred duties of the judiciary, 
and constitutes it the supreme defender of 
the liberties of the people. Congress is 
surely in the wrong when it states an un- 
constitutional measure to be the will of 
the people. If the people had really the 
will to change the Constitution, they would 
do it. 



And the Problems of the Future. 



29 



*' The j%idicial power extends to all cases 
in law and equity arising under the Con- 
stitution, the laws of the United States, 
and treaties made, or which shall be made, 
under their authority; to all cases affecting 
ambassadors, other public ministers, and 
consuls ; to all cases of admiralty and mari- 
time jurisdiction; to controversies to which 
the United States shall be a party ; to con- 
troversies between two or more States; 
between a State and citizens of another 
State ; between citizens of different States ; 
between citizens of the same State, claim- 
ing lands under grants of different States ; 
and between a State, or the citizens thereof, 
and foreign States, citizens or subjects." 

That the judicial power of the General 
Government should have original and ex- 
clusive jurisdiction over all cases arising 
under the Constitution and laws of that 
government, and over all cases arising 
with foreign citizens or States, seems self- 
evident ; and it seems equally rational that 
it should have only appellate jurisdiction 
in all other cases mentioned in the above 
clause. But art. 9 of the amendments to 
that Constitution says, however : 

"The judicial power of the United States 
shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted 
against one of the United States by citizens 
of another State, or by citizens or subjects 
of any foreign State." 

By virtue of this amendment, the judi- 
cial power of the General Government has 
no jurisdiction in cases in which a citizen 
of one State, or a foreigner, is the plaintiff, 
and such State the defendant ; nor has it 
even exclusive jurisdiction if such State be 
plaintiff. Why the State courts, in such 
cases, should supersede the courts of the 
General Government, seems difficult to 
understand. It would appear as if the 
United States courts ought to have final 
jurisdiction in all cases, except those which 
arise between citizens of the same State 
under its own laws. 

Congress has the power to constitute 
tribunals inferior to the Supreme Court; 
and, in accordance with this power. Con- 
gress has divided the whole United States 
into nine circuits, in each of which circuits 



the United States Circuit Court assembles 
twice a year, one of the Supreme Court 
judges presiding, together with the Circuit 
Court judge. Congress has likewise divi- 
ded the United States into thirty-five dis- 
tricts, for each of which the President has 
appointed, with the consent of the Senate, 
a District Judge. The District Courts 
dispose of the minor cases. A separate 
judicial organization has likewise been 
established for the Territories of the Uni- 
ted States. 

The executive power of the General Gov- 
ernment is operative at all times ; the 
judicial power at different periods, in dif- 
ferent sections of the country ; but the 
highest court, the Supreme Court, must 
assemble at least once a year. The legis- 
lative power is required to assemble at 
least once a year, and the duration of its 
sessions depends altogether upon its own 
will. 

XIII. 

It is not to be denied that, of late years, 
doubts have arisen among a number of our 
so-called intelligent public men, respecting 
the practicability of republican institu- 
tions. Happily, the "common people" — 
the so-called ignorant classes — exhibiting 
therein far higher intelligence and states- 
manship, — have not yet learned to share 
these doubts. We have shown that repub- 
lican institutions — comprising certain gen- 
eral elections, a written constitution, a 
confederacy of States, and a judiciary 
independent of the legislative department 
— form the only rational and legal form of 
government. If, therefore, the doubts allu- 
ded to have any justification in facts, the 
legitimate conclusion is not that a repub- 
lican form of government is a failure, (for 
reason could not require what is not to be 
maintained,) but rather that its form has 
not yet been thoroughly perfected. In- 
stead, therefore, of going back to history 
for the suggestion of measures to help us 
in our diffieulties, or of casting longing 
eyes upon a despotic form of government, 
in the hope that it may kill off the wrongs 
of partial anarchy, we should rather fall 
back upon our own invention and artistic 
skill, and try to discover new improvements 



30 



Our Form of Government, 8fc. 



in the wonderful piece of machinery handed 
down to us by our forefathers. It has been 
already suggested, in the course of this 
investigation, where such improvements 
are necessary, or might be of advantage. 
A change in the manner of electing the 
President, particularly, would be one of 
the most beneficial reforms that could be 
extended to our country. 

It must always be recollected that the 
greatest number of complaints about the 
insufSciency of republican institutions 
arise among the inhabitants of large cities, 
and that for this reason it will be one of 



the most important problems for idae future 
statesmen to invent a republican machinery 
for municipal governments, which shall 
stop the cause of those complaints. In 
so far, however, as the grounds of these 
complaints is to be discovered in the apathy 
evinced by a large number of citizens for 
political action, no cure can or should be 
invented. When our citizens shall have 
become so corrupt that they will rather 
risk the fate of republican institutions 
than rouse themselves to political action, 
it will be time for our institutions to make 
way for anarchy and subsequent despotism. 



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LIBRARY OF CONGRESS 




011 795 434 1 




